United States v. Ricardo Amador Ballesteros-Garcia

USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 16-11741
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO AMADOR BALLESTEROS-GARCIA,
a.k.a. Ricardo Amador Ballesteros,
a.k.a. Ricardo Amador Ballester
a.k.a. Alejandro Alvarez Abreu,
Defendant-Appellant.
____________________
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2 Opinion of the Court 16-11741
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:13-cr-20455-PAS-1
____________________
____________________
No. 16-11770
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO AMADOR BALLESTEROS-GARCIA,
a.k.a. Ricardo Amador Ballesteros,
a.k.a. Ricardo Amador Ballester,
a.k.a. Alejandro Alvarez Abreu,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:12-cr-20322-PAS-1
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16-11741 Opinion of the Court 3
____________________
____________________
No. 16-11771
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO AMADOR BALLESTEROS-GARCIA,
a.k.a. Ricardo Amador Ballesteros,
a.k.a. Ricardo Amador Ballerter
a.k.a. Alejandro Alvarez Abreu,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:12-cr-20400-PAS-1
____________________
Before JORDAN, BRANCH, and MARCUS, Circuit Judges.
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PER CURIAM:
In this consolidated appeal, Ricardo Ballesteros-Garcia, pro-
ceeding through counsel after proceeding pro se in the district
court, appeals his convictions and sentence. This case began as
three separate indictments that were consolidated for trial and sen-
tencing, and involved a variety of charges, including serving as a
pilot without an airman’s certificate, conspiring to commit bank
fraud, committing bank fraud, and making false statements to fi-
nancial institutions. Ballesteros-Garcia told the district court he
wanted to represent himself, and after the court conducted hear-
ings pursuant to Faretta v. California, 422 U.S. 806 (1975), to con-
firm that his waiver of the right to counsel was knowing and vol-
untary, it allowed him to do so from arraignment through sentenc-
ing, with the help of standby counsel. The jury found Ballesteros-
Garcia guilty of the false statement charges and acquitted him of
the other charges. The district court sentenced him to 87 months’
imprisonment and five years’ supervised release and ordered him
to pay restitution in the amounts of $243,164 and $332,042.
On appeal, Ballesteros-Garcia argues that: (1) the district
court violated his Sixth Amendment rights by denying him the abil-
ity to subpoena witnesses for trial, sentencing, and the restitution
hearing, and refusing to appoint him an investigator or allow him
access to a private investigator; (2) the court erred in calculating
the loss and restitution amounts; and (3) the court erred in applying
a 2-level role enhancement pursuant to U.S.S.G. § 3B1.1(c). After
thorough review, we affirm.
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16-11741 Opinion of the Court 5
I.
We review constitutional questions de novo. United States
v. Ward, 486 F.3d 1212, 1221 (11th Cir. 2007). We review a district
court’s evidentiary rulings for abuse of discretion and review fac-
tual findings underlying an evidentiary ruling for clear error.
United States v. Lanzon, 639 F.3d 1293, 1300 (11th Cir. 2011). Sim-
ilarly, we review a district court’s determination of the restitution
amount for abuse of discretion and review factual findings under-
lying the restitution order for clear error. United States v. Robert-
son, 493 F.3d 1322, 1330 (11th Cir. 2007). We review a district
court’s determination of loss amount for clear error. United States
v. Cavallo, 790 F.3d 1202, 1232 (11th Cir. 2015). We also review the
imposition of an aggravating role enhancement for clear error.
United States v. Jimenez, 224 F.3d 1243, 1251 (11th Cir. 2000). A
factual finding is clearly erroneous if we are left with a definite and
firm conviction that a mistake has been committed. United States
v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004).
However, if a defendant fails to object to an issue in the dis-
trict court, we review only for plain error and will not reverse un-
less he shows (1) plain (2) error (3) affecting his substantial rights.
Ward, 486 F.3d at 1221. If all three conditions are met, we may
exercise our discretion to notice an error that seriously affects the
fairness, integrity, or reputation of judicial proceedings. Id. In ad-
dition, a party may not challenge an error he invited. United States
v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). Finally, we deem an
issue abandoned if it is not prominently raised on appeal in the
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initial brief or if it is raised without supporting arguments and au-
thorities, but we can consider the issue sua sponte if a forfeiture
exception applies and extraordinary circumstances warrant review.
United States v. Smith, 967 F.3d 1196, 1204 n.5 (11th Cir. 2020);
United States v. Thomas, 242 F.3d 1028, 1033 (11th Cir. 2001);
United States v. Campbell, 26 F.4th 860, 873 (11th Cir.) (en banc),
cert. denied, 143 S. Ct. 95 (2022).
II.
First, we are unpersuaded by Ballesteros-Garcia’s claim that
the district court violated his Sixth Amendment rights. The Sixth
Amendment guarantees a defendant the effective assistance of
counsel for his defense. United States v. Bryant, 579 U.S. 140, 149
(2016). However, the Supreme Court has declined to decide what
showing a defendant must make to be entitled to the appointment
of an investigator. Caldwell v. Mississippi, 472 U.S. 320, 323 n.1
(1985).
The Sixth Amendment also guarantees a defendant the right
to compulsory process to obtain witnesses in his favor at trial and
to present favorable evidence. United States v. Hurn, 368 F.3d
1359, 1362 (11th Cir. 2004). In evaluating alleged violations of this
right, we examine whether the right was actually violated and, if
so, ask whether the error was harmless beyond a reasonable doubt.
Id. at 1362–63. Under Federal Rule of Criminal Procedure 17(b), a
court must order the issuance of a subpoena for a named witness,
on a defendant’s ex parte motion, if the defendant shows (1) his
inability to pay the witness’s fees, and (2) “the necessity of the
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16-11741 Opinion of the Court 7
witness’s presence for an adequate defense.” A defendant’s right to
compulsory process is not violated if he never asks the court to is-
sue a subpoena. United States v. Capers, 708 F.3d 1286, 1304 (11th
Cir. 2013). Further, a defendant does not have a due process right
to call witnesses at sentencing; he must be afforded an opportunity
to refute the information brought against him, but courts have dis-
cretion to determine the kinds of information they will consider.
United States v. Giltner, 889 F.2d 1004, 1008 (11th Cir. 1989).
Here, Ballesteros-Garcia first argues that the district court
should have appointed him an investigator. Notably, however, he
did not request an investigator from the court nor did he object to
the court’s decision to appoint him Spanish-speaking standby coun-
sel rather than an investigator. Thus, we review this claim for plain
error, and can find none. For starters, we’ve found no case from
this Court or the Supreme Court requiring the appointment of an
investigator sua sponte, or even upon a motion. Cf. Caldwell, 472
U.S. at 323 n.1. Nor can Ballesteros-Garcia show that his substan-
tial rights were affected; he eventually hired a private investigator
on his own and retained her during sentencing. Thus, to the extent
that he faults the court for failing to appoint him an investigator at
any point after he hired an investigator, he invited any error by rep-
resenting that he already had one. See Love, 449 F.3d at 1157. And
to the extent his compulsory process argument stems from the
court’s failure to appoint an investigator, that argument fails for the
reasons we’ve just detailed.
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We also conclude that the district court’s actions were suffi-
cient to protect Ballesteros-Garcia’s compulsory process rights to
obtain witnesses in his favor before and during his trial, even if he
ultimately failed to secure any witnesses. As the record reflects,
Ballesteros-Garcia, who chose to proceed pro se, said at a pretrial
conference that he would bring all his witnesses except for the
“mandatory witnesses” on the government’s side at his own ex-
pense. Thus, he invited any error as to all the non-government
witnesses, including those he says he wished to call, like Rafael Del
Pino and Rafael Cardenas. See id.We find no error concerning the other potential witnesses
either. As for Cardenas and another witness he mentions to us,
Agent Rafael Quinquilla, Ballesteros-Garcia never placed either
name on his witness list, nor did he file an amended witness list
after the court instructed him to do so. The court even told him
he could call Cardenas as a witness if he gave the court Cardenas’s
address. It also observed that he had not requested subpoenas and
that, normally, defendants prepared subpoenas and provided them
to the court to issue. His standby counsel offered to prepare them,
and the court granted him a four-week continuance. And when
the court later denied Ballesteros-Garcia another continuance, he
had not indicated that he needed the continuance to prepare sub-
poenas. On this record, not only were Ballesteros-Garcia’s actions
likely insufficient to preserve the witness issue for appeal, but they
also do not show that the court failed to protect his right to com-
pulsory process to obtain witnesses in his favor at trial.
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16-11741 Opinion of the Court 9
Nor do we conclude that the district court denied Balles-
teros-Garcia compulsory process at sentencing. As for whether the
district court erred by denying his motion to order the Bureau of
Prisons to permit his investigator and others to visit him in prison,
his motion did not explain why he needed to see those individuals
in prison and he has not provided any supporting authorities for his
request, either in district court or on appeal. As for whether the
district court violated Ballesteros-Garcia’s compulsory process
rights by denying his Rule 17(b) subpoenas, we’ve located no bind-
ing precedent holding that he had a due process right to call wit-
nesses at sentencing. See Giltner, 889 F.2d at 1008. Moreover, he
did not re-raise his motions for Rule 17(b) subpoenas before the
restitution hearing, and there is no authority to suggest that the
court erred or plainly erred by not sua sponte re-raising and grant-
ing those motions. We affirm as to his Sixth Amendment claims. 1
III.
1 Further, Ballesteros-Garcia has abandoned (1) any argument that the district
court violated his compulsory process rights by declining to subpoena the ju-
rors in his case, Rafael Cardenas, or Agent Rafael Quinquilla, and (2) any chal-
lenge separate from his compulsory process argument to the district court’s
denial of his motions to continue or for Fed. R. Crim. P. 17(b) subpoenas or to
any of the court’s specific evidentiary rulings. These issues are abandoned be-
cause his brief on appeal does not provide supporting arguments and authori-
ties for them. See Smith, 967 F.3d at 1204 n.5. He also raises two arguments
in his reply brief for the first time on appeal -- concerning the government’s
concealment of evidence and his detention -- and those arguments are likewise
abandoned. See Thomas, 242 F.3d at 1033.
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Next, we find no merit to Ballesteros-Garcia’s claim that the
court erred in calculating the loss amount at sentencing. A defend-
ant is subject to a 14-level enhancement if his offense results in a loss
amount of more than $550,000 and less than $1,500,000. U.S.S.G. §
2B1.1(b)(1)(H). The court must make a reasonable estimate of the
loss. Id. comment. (n.3(C)).
Loss must not include interest of any kind and must be re-
duced by the money returned by the defendant. Id. (n.3(D)(i),
(E)(i)). Where a loss arises out of a fraudulent mortgage transac-
tion, the actual loss is the amount of the loan minus the amount
recovered from the collateral property’s sale. Cavallo, 790 F.3d at
1239. We’ve not addressed whether a principal amount increased
by outstanding interest pursuant to the terms of the loan can be
used to calculate loss.
Ballesteros-Garcia first challenges the district court’s loss cal-
culation for the 158th Street property, claiming that the district
court should not have used a principal amount for the property that
was increased by unpaid interest. But he did not make this specific
argument in district court. And because a defendant does not pre-
serve all possible challenges to a court’s loss calculation by raising
any challenge to that calculation, we review this claim for plain er-
ror and, once again, can find none. See United States v. Abovyan,
988 F.3d 1288, 1312 (11th Cir. 2021) (holding that defendant waived
challenge to intended loss amount and its foreseeability because he
solely objected to the use of intended loss rather than actual loss).
Although § 2B1.1 broadly prohibits courts from including interest
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16-11741 Opinion of the Court 11
“of any kind” in loss, the unpaid interest here was made part of the
principal pursuant to the terms of the loan.2 We’ve located no de-
cision from this Court or the Supreme Court addressing whether a
court can use a principal amount increased by unpaid interest pur-
suant to the terms of the loan to calculate loss. Thus, the district
court did not plainly err in its loss calculation for the 158th Street
property. See Ward, 486 F.3d at 1221.
As for the Ixora Way property, the court did not clearly err
by concluding that the principal amount increased to $869,119 -- af-
ter starting as a $805,000 loan -- because the government provided
evidence that this was the principal amount due at the time that
Ballesteros-Garcia entered into a loan modification agreement with
JP Morgan Chase & Co. (“Chase”). Further, he does not indicate
on appeal that the court included interest in the loss calculation. See
Smith, 967 F.3d at 1204 n.5. The court’s ultimate calculation as to
the Ixora Way property was based on the final outstanding principal
at the time the loan was defaulted on, $612,043, minus the gross
proceeds from the property’s sale, $530,000, plus the $250,000
Chase never recovered from the modification agreement -- result-
ing in a loss amount of $332,043. Ballesteros-Garcia has abandoned
any challenge to the inclusion of the $250,000 from the modification
2 The loan was described as containing a “negative amortization” feature,
which is defined as “[a]n increase in a loan’s principal balance caused by
monthly payments insufficient to pay accruing interest.” Black’s Law Diction-
ary (11th ed. 2019) (defining “negative amortization”).
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agreement, see id., and regardless, we cannot say that the district
court clearly erred by including this sum in the loss amount.
Finally, the court did not clearly err by declining to reduce
the loss amount stemming from either property by the payments
that he made. As the record reflects, the government provided ev-
idence that those payments went to “interest only” rather than prin-
cipal. Further, to the extent that any of the payments were made
towards the principal balances on the loans, they were incorporated
into the loss calculation through those principal balances. And, as
we’ve noted, the guideline provides that the loss calculation should
not include any interest. See § 2B1.1(b)(1) comment. (n.3(D)(i),
(E)(i)).3
IV.
Nor are we convinced that the district court miscalculated
the restitution amount at sentencing. To calculate the restitution
amount owed to a successor lender who purchased a fraudulently
procured mortgage, a court generally should subtract the amount
recovered from the sale of the property from the amount that the
3 The government concedes that the court made a calculation error and that
the loss amount stemming from the 158th Street property was $50 lower. But
because the 14-level enhancement applied to Ballesteros-Garcia if the loss
amount was greater than $550,000, and the court found that the total loss
amount for both properties was $599,833.76, any calculation error less than
$49,833.76 was harmless. See § 2B1.1(b)(1)(H).
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16-11741 Opinion of the Court 13
lender paid to acquire the mortgage. United States v. Martin, 803
F.3d 581, 595–96 (11th Cir. 2015).
Here, the district court did not abuse its discretion in calcu-
lating the restitution amount or clearly err in any of its related fac-
tual findings. To the extent the Ballesteros-Garcia challenges the
language concerning restitution in the district court’s order in case
number 1:12-cr-20400 (the case involving the 158th Street prop-
erty), the court entered an amended judgment in that case reflect-
ing the actual amount it found that he owed in restitution. In de-
termining this amount, the court properly relied on the price that
the successor lender paid for the 158th Street property mortgage
rather than original amount of the loan. See id.As for the Ixora Way property, Ballesteros-Garcia aban-
doned any challenge to the court’s restitution determination. Alt-
hough he says in passing that the calculation should have been
based on the principal due on the loan at the time of the loan mod-
ification agreement, he does not provide any supporting argu-
ments or authorities. See Smith, 967 F.3d at 1204 n.5. He also
abandoned any argument that the amounts that the successor lend-
ers paid for the mortgages were incorrect, or that the court incor-
rectly identified the victims. See id.
V.
Finally, we are unpersuaded by Ballesteros-Garcia’s argu-
ment that the district court erred in applying a role enhancement
at sentencing. A defendant is subject to a 2-level enhancement if
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14 Opinion of the Court 16-11741
he was an organizer, leader, manager, or supervisor in any criminal
activity involving at least one other participant. U.S.S.G.
§ 3B1.1(c), comment. (n.2). In United States v. Mandhai, we held
that the assertion of control or influence over one person is suffi-
cient to support a § 3B1.1(c) enhancement. 375 F.3d 1243, 1248
(11th Cir. 2004).
Once again, Ballesteros-Garcia has abandoned any challenge
to the district court’s imposition of the § 3B1.1(c) enhancement by
failing to provide supporting arguments and authorities in his brief
on appeal. See Smith, 967 F.3d at 1204 n.5. He says that the evi-
dence was insufficient to support the enhancement, but he does
not explain how. Furthermore, he distinguishes a case that the dis-
trict court relied on, Mandhai, by asserting that he was not con-
victed of a conspiracy offense, but he does not explain why that is
material to his enhancement. Regardless, even if he had not aban-
doned or failed to preserve this issue, the court did not clearly err
in imposing the enhancement because he created a false name for
his codefendant, Ivan Pita Gonzalez, obtained a passport and birth
certificate under that false name, and paid deposits and mortgage
payments related to properties he provided to Gonzalez under that
false name -- all of which is sufficient to support the role enhance-
ment. See U.S.S.G. § 3B1.1(c).
AFFIRMED.